Berg v. Obama: Dismissed

As I predicted here, Judge Surrick threw out Berg v. Obama last night, granting Obama et al.’s motion to dismiss. According to a news report on the opinion, which isn’t yet online:

In a 34-page memorandum and opinion, the judge said Berg’s allegations of harm were “too vague and too attenuated” to confer standing on him or any other voters.

Surrick ruled that Berg’s attempts to use certain laws to gain standing to pursue his claim that Obama was not a natural-born citizen were “frivolous and not worthy of discussion.”

The judge also said the harm Berg alleged did “not constitute an injury in fact” and Berg’s arguments to the contrary “ventured into the unreasonable.”

“Frivolous” and “unreasonable”: do I smell a sanctions motion coming?

(H/T: Reader A.G.)

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Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

29 Responses

Handled right, the Fed District Court throwing out Berg for lack of standing can present a political check-mate “win” on appeal for the anti-Obama side (if not in law, in the Court of Public Opinion). Here’s how: SIMPLY SPREAD AROUND OBAMA’S APPELLATE BRIEF HAVING TO ARGUE AGAINST AN AMERICAN VOTER’S RIGHT TO RAISE THE QUESTION UNDER THE CONSTITUTION. Should be a PR disaster for the Dems and Obama!!!

where do u get this from? The official court website does not have a decision on it as yet as of Saturday, October 25, 2008. What or who is the source of the news report u cite to bolster your statement? If you are making this up, you are certainly doing a disservice to all citizens

To put it differently: “People like Berg need to be beaten down, what do they thing, the government has some legal obligation to obey the Constitution?” Next thing you know, there will be people suing when they’re forced to obey laws that weren’t passed by both chambers, or where no quorum was present during the vote…

What is distressing is the fact that anyone can run for president and even become president without any security clearance whatsoever. Because of all the serious questions related to Obama I took the time to find out about the vetting processes related to potential presidents & VP’s. Zero . . . nada! Same goes for senators & congress persons.

Obama refuses to disclose the simplest of documents even such a simple one as a “FULL BIRTH CERTIFICATE” which would show the doctor’s name and hospital. Right now we have more than one member of Obama’s family giving different hospital names.

This is a man who claims he will demand complete accountability and transparency but when it comes to himself, everything is off limits. Common sense itself has to question: WHY?

“What is distressing is the fact that anyone can run for president and even become president without any security clearance whatsoever.”

I don’t find that distressing. The alternative is letting the sitting administration effectively rule out any successors they don’t like.

I don’t see how we could avoid it being politically gamed.

Anyway, the use of standing to deny the citizenry any legal recourse when the government violates the Constitution in a way which doesn’t harm only particular people is offensive. It’s just the judiciary’s way of being complicit when the other two branches decide that the rule of law is inconvenient.

What’s wrong with this country? As a natural born citizen, I am appalled that such a serious issue as this can be brushed off by lack of standing. The question remains: Is Barack Hussein Obama eligible to be President of the United States as provided by the Constitution of the USA and pursuant to Federal law. Yes or No. Just the facts, please! Let’s get the truth out. If Barack isn’t eligible, then he MUST NOT BE ALLOWED TO BE PRESIDENT. PERIOD. Politics are not the issue here. The truth is. Let the truth prevail!

Why is it that so many people do not care about our Constitution? Even our presidential candidates do not care about the Constitutional requirements of eligibility to be the President. I guess the position is so deminished and our fellow citizens are too caught up in their own lives they do not thing about the nation as a whole.

In this case “standing” is at the total whim of the judge. According to this judge no one could have standing because the claims of harm are “too vague and too attenuated”.

Remove yourself from the present case and imagine another presidential candidate who was never properly vetted by the DNC or RNC? He has a history of radical friends, mentors and individuals pulling strings to advance his career. And he has a questionable background on where he was born. He might be the next president. But the judge says you have no standing to make him prove he is a natural born citizen of the U.S. because the claims of harm are “too vague and too attenuated”. You’d expect that judge to get his head checked.

I am a retired peace officer. When I graduated from college I spent several hundred dollars getting dozens of certified copies of my birth certificate, college transcripts, and high school transcripts because along with every application I submitted for an entry level position with police/sheriff/probation departments that I applied to I was required to submit these documents along with copies of my diplomas. I also had to submit a list of all the addresses where I had lived since becoming an adult, and any trips I had made out of country. This information was used to conduct background investigations since I was applying for jobs that required a security clearance. Obama is applying for the highest office in the land and is refusing to produce these documents? Why bother fighting a case when it can be quashed by simply showing these documents to the judge if there isn’t anything to hide?

I think that the most important information in this case is that he traveled to Pakistan in 1981, which is admitted by his campaign, which was a no travel zone for US citizens at that time as Pakistan was under Marshall Law. On his way there Obama stopped in Indonesia to visit his sister at which point, in order to get into Pakistan legally, he would have had to get his Indonesian passport renewed in order to travel to Pakistan. The only way he could have renewed his Indonesian passport would be to declare himself an Indonesian citizen (his school records from Fransiskus Assisi show he was recognized as an Indonesian citizen as a minor, http://www.daylife.com/photo/01u33pL9Ns06D), because in 1981 Indonesia did not recognize dual citizenship. This would mean that, AS AN ADULT, Obama gave up his US citizenship in order to get his Indonesian passport. If this is not the case, then Obama should not have any problems producing his US passport showing that he traveled to Pakistan in 1981. Records of this should also be maintained by the US State Department. My thought is that he has claimed his extensive travel and connections to other countries qualifies him to handle foreign affairs as President, so he should be required to produce documentation to support his claims.

I am two years younger than Obama and was born in Louisiana. I was born at home and the only people present were myself, and of course I have no recollection of the event, my father, who delivered me and is now deceased, and my mother. I looked over my birth certificate recently and went over the information on it. While I am certain there are records from the doctors my mother took me to shortly after my birth, the actual deed was not registered with the Office of Vital Records by my father until six months after my birth, at the time we were getting ready to move out of state. It clearly states on the document the address and Parish where I was born. Obama admits in his book that he has a copy of this document, so why is he failing to produce it?

If you read the court documents you’ll see that a similar case, Hollander v McCain, was recently dismissed for the same lack of standing. That case questioned McCain’s citizenship due to his birth in the Panama Canal Zone which was a US holding for a time but no longer is.

Are those of you upset over this case being dismissed equally upset about Hollander?

I believe that as citizens, we do have a right to question the background of anyone running for President, and yes this includes McCain. However McCain did produce his birth certificate and other documents. His father was in the Navy and he was born in a US Army base hospital. Like embassies, these are considered to be US soil, even though they may be outside the US. So, no, I do not question McCain’s ‘natural born’ status. However because Obama has refused to produce his documents for verification, I do question his qualifications, especially in light of his citizenship issues in other countries, which is unprecedented in former candidates for the office of President.

A lot of this may just be rumor, but the logical and easy way to put it to rest is to produce the documents, which Obama has refused to do. Doesn’t that make you even slightly suspicious? What does he have to hide? Did he accept scholarships/grants through college and grad school as a citizen of another country? Wouldn’t that be fraud? Did he travel to other countries as a citizen of another country? Isn’t this a matter of common sense security for our nation especially when it involves someone who is running for the highest office in the land?

I am not an attorney, and I do not claim to be a law clerk, however I did study law for four years in college. It seems to me that the constitutional requirements for becoming President of the United States are extremely minimal. Why should anyone have a problem with proving they meet these minimal requirements when running for the Office of President? In fact, I would go so far as to state that while I, as a citizen, may not have ‘standing’ under Judge Surrick’s decision, to force Obama to produce these documents, I intend to find out by contacting the Secretary of State’s Office tomorrow and file a formal request that he demand these documents from Obama or remove him from the ticket as the Secretary of State’s Office is responsible for vetting candidates.

Did anyone here read Berg’s initial motion? About 90% of his exhibits that were supposed to support his case consisted of articles from newspapers and Internet blogs. He also presented a document that was supposed to be a registration to an Indonesian school, which was not an official document for purposes of proving his case, and if he was presenting it as official and truthful, then he was contradicting his own case, because the document said that Obama was born August 4, 1961 in Honolulu, Hawaii. He also said that Obama’s stepsister and brother said they witnessed his birth in Kenya — but there were no accompanying signed and notarized affidavits. Third, in the Motion to Dismiss filed by Obama’s attorney and the DNC’s attorneys, they cited case law from a practically identical suit filed against McCain (Holloway v. McCain) in which McCain’s attorneys successfuly argued that Holloway had no standing to bring the case, and thus the court had no subject matter jurisdiction to hear the case, so it had to be dismissed. Someone complained about a 34 page opinion to dismiss the case. Well, I believe this is so sensitive that the judge wanted to be careful not to commit any reversible error in stating his opinion. And the best way to do that is to rely on the laws, which by the way were made by Congress. And in his opinion, did he not invite Congress to change those laws if they felt it necessary should future litigation of this type arise? It would take a skilled appellate atty to find a reversible error within the judge’s ruling and successfully argue it, and I’m afraid Berg hasn’t shown that skill. Should a three-judge panel also find it to be frivilous, it would be immediately dismissed.

@Suspicious: re: “His father was in the Navy and he was born in a US Army base hospital. Like embassies, these are considered to be US soil, even though they may be outside the US.”

Absolutely false re military bases. Leasing territory does not make it US soil — that would be news to the Koreans, Japanese, Germans, and others. E.g., Guantanamo is leased Cuban soil, as the Bush Administration has argued (when it suits them).

I beg to differ with you. Military bases on foreign soil are considered to be US soil for the duration of the lease, which is why Cubans don’t go walking into Gitmo any time they would choose to and why we have guys with big guns standing on the walls there.

Further, regarding McCain, both his parents were US citizens and Panama was a US territory at that time. Again, I don’t think that ‘natural born’ citizenship is an issue for McCain.

Just for clarification, I do not support either of the two candidates. However, I would vote for McCain before Obama at this point because Obama seems to expect a vote without being required to meet even the most minimal standard of producing a birth certificate. At least McCain has done that.

Read the decision in “Holloway v. McCain”. The question was addressed, and the court concluded that the Panama Canal Zone was not a part of the U.S., therefore McCain is a “naturalized citizen” as opposed to a natural born citizen. However, they further concluded that because Holloway lacked standing that the court had no right to judge the case on its merits. And in terms of standing, Judge Surrick did his homework and cited case after case where citizen’s actions lacked standing, and what was necessary to show standing and why this case did not pass the test. He even noted a case filed against Bush and Cheney that relied on Constitutional law that said a president and vice president cannot be from the same state, and they are both from Texas. Again, the court dismissed the case for lack of standing by the plaintiffs – who wanted Bush and Cheney removed to be replaced by a “qualified” ticket.

From 1903 to 1979 Panama was a US territory. I did a search for “Holloway v. McCain” but no results showed for an issue regarding McCain’s natural born status. However, when I searched for “McCain Birth” I did come across an article that mentions a case regarding his ‘natural born’ status and the findings of the court:

“Based on the original meaning of the Constitution, the Framers’ intentions, and subsequent legal and historical precedent, Senator McCain’s birth to parents who were U.S. citizens, serving on a U.S. military base in the Panama Canal Zone in 1936, makes him a ’natural born citizen’ within the meaning of the Constitution,” the review found.

This article also indicates that Panama was a US territory at the time of McCain’s birth. Here is a link to the article:

Suspicious: US military bases are NOT American soil. That is why the Bush administration specifically chose Gitmo to detain “enemy combatants” — the Prez’s legal counsel had advised him that habeas corpus would not apply because it was outside the US.

A child born on a US military base gains citizenship through the parents (jus sanguis) not through the basis of where he or she was born (jus solis).

The State Department’s Foreign Affairs Manual reiterates this well-established principle:

7 FAM 1116.1-4 Not Included in the Meaning of “In the United States”

(TL:CON-64; 11-30-95)

a. A U.S.-registered or documented ship on the high seas or in the exclusive economic zone is not considered to be part of the United States. A child born on such a vessel does not acquire U.S. citizenship by reason of the place of birth (Lam Mow v. Nagle, 24 F.2d 316 (9th Cir., 1928)).

b. A U.S.-registered aircraft outside U.S. airspace is not considered to be part of U.S.

territory. A child born on such an aircraft outside U.S. airspace does not acquire U.S.

citizenship by reason of the place of birth.

c. Despite widespread popular belief, U.S. military installations abroad and U.S.

diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.

If you people think if this case is so serious why is there no public figure (like MCCAIN!?!?) with standing and possible damage (being defeated by someone unqualified is a BIG damage) take up the case?

It seems the very reason that McCain didn’t push the Obama issue with birth is that it would also have pushed his into further scrutiny. A lot. Both were not qualified then, (even with one judges ruling, McCain’s case could have gone to appeal).

But to squash both of them to avoid clarifying the issue, which requires interpretation of the Constitution in this case is quite a problematic reflection on our due process.

If we don’t require Presidents to uphold the Constitution why should anyone else?

Perhaps NEITHER were qualified, which also explains why the media didn’t bring any of this to the light for the general population to be informed. It would be a crisis during a presidential election year, both campaigns would have been challenged, and new candidates would have to have been appointed. That has never happened.

Perhaps these things should be determined before ANY potential candidate throws their hat in the ring. As it stands now, Arnold Schwarzenegger has grounds to pursue the highest office in the land and he has been quite outspoken about his interest in doing so. All he has to do is cite these two cases and he has established case precedent and in effect the beginning of countering our Constitution on the grounds of others not having to adhere to it has been set.

This is the reason why this is ‘so important’. Perhaps now that the ‘politics’ are out of the way (anyone pointing to this issue on Obama were accused of all sorts of things by his supporters) the higher courts can proceed to process the matter without concern over ‘campaign prejudice’.